McNeill

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

KENYA McNEILL,

Plaintiff, 6:24-cv-1241

(ECC/CBF)

v.

OFFICE OF CHILDREN AND FAMILY

SERVICES,

Defendant.

Kenya McNeill, pro se Plaintiff

Elizabeth Lombardi, Asst. Att’y General, for Defendant

Hon. Elizabeth C. Coombe, United States District Judge:

MEMORANDUM-DECISION AND ORDER

Plaintiff Kenya McNeill brought this action pro se against the Office of Children and

Family Services, a New York State Agency, alleging claims under Title VII. Complaint (Compl.),

Dkt. No. 1. Presently before the Court is Defendant’s motion to dismiss the Complaint for failure

to state a claim. Dkt. No. 10. The motion is fully briefed, Dkt. Nos. 10-2, 13, 16. For the following

reasons, Defendant’s motion is granted, and Plaintiff’s Complaint is dismissed with leave to

amend.

I. FACTS1

Defendant operates a limited security residential center in Taberg, New York for girls aged

1 These facts are drawn from the Complaint. The Court assumes the truth of, and draws reasonable

inferences from, the well-pleaded factual allegations, see Lynch v. City of New York, 952 F.3d 67,

74–75 (2d Cir. 2020), but does not accept as true any legal conclusions, see Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

13 to 18 who have been adjudicated juvenile delinquents.2 Plaintiff worked at Defendant’s Taberg

facility in 2023 and 2024 as a “Yss.” Compl. at 3, 8, 10.3 Although not specifically articulated in

the Complaint, it appears that Plaintiff is a Black man. See id. at 3, 8, 13.

On May 20, 2023, one of Plaintiff’s coworkers, “Yss Ray,” came to the unit that Plaintiff

was working on, and “causes problems” with a resident, after the resident “was given expectations

on her behavior.” Compl. at 3. Plaintiff was later removed from the unit by another colleague,

“AOD Owens.” Id. Plaintiff was told that he could lose his job “because of what Yss Ray did.”

Id.

The next day, Plaintiff’s supervisor, Nicole Jackson, told him “that Yss Ray should not

have come” to the unit “and that she should” have listened to the staff that was assigned to the

unit. Compl. at 3. In addition, “other senior Yss said the same thing” to Plaintiff after they found

out what happened, and “you shouldn’t be removed from unit when a youth complains about you

because it empowers the girls to make false allegation to get staff off the unit.” Id. at 4.

On June 3, 2023, during dinner, Plaintiff “had to redirect” a resident, “for her volume,” and

as Plaintiff was explaining that the resident could receive “no’s for her volume and behavior,”

“Ray injects into the conversation.” Compl. at 4. Ray told the resident “a few times” “don’t worry

2 The Court takes judicial notice of this fact on Defendant’s website.

Taberg Residential Center for Girls, Off. of Child. and Fam. Servs.,

https://ocfs.ny.gov/programs/rehab/facilities/taberg.php (last visited March 18, 2026); see Wells

Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156, 167 (S.D.N.Y. 2015)

(citations omitted) (“[F]or purposes of a 12(b)(6) motion to dismiss, a court may take judicial

notice of information publicly announced on a party’s website, as long as the website’s authenticity

is not in dispute and it is capable of accurate and ready determination”); see also Finn v. Barney,

471 F. App’x 30, 32 (2d Cir. 2012) (concluding “that the district court did not abuse its discretion

in taking judicial notice of” websites and media reports).

3 Unless otherwise noted, citations to page numbers refer to pagination generated by the Court’s

ECF (electronic filing) system. Excerpts from the record are reproduced exactly as they appear in

the original, and errors in spelling, punction, and grammar have not been corrected, unless

otherwise indicated.

you’re not getting any no’s.” Id. Plaintiff told the resident that “Ray does not dictate what I do.”

Id. Ray took the resident “to the comfort room.” Id. “During the incentive, the girls were watching

a movie,” Plaintiff “was redirecting” the resident “for her volume,” and “explained to her the

expectation [he] had of her.” Id. The resident “was very rude,” “put her hand in [Plaintiff’s] face,”

and “said ok.” Id. Ten to 15 minutes later, the resident “was being loud again so [Plaintiff]

redirected [her] and sent her to her room for five minutes.” Id. By the time Plaintiff walked back,

“Ray let [the resident] out of her room.” Id. Plaintiff “got up and informed [the resident] she had

to go back into her room.” Id. She was “being rude to [Plaintiff] but went into the room.” Id.

Plaintiff asked Ray why she had let the resident out of her room, and Ray said “I feel she spent her

time in her room.” Id. Plaintiff did not respond. Id.

“Ray called for the AOD to come,” and “Owens came.” Compl. at 4. Owens asked Ray

what happened, and Ray responded, “I don’t know.” Id. Plaintiff explained to Owens that Ray

had been undermining him “in front of the girls,” making his “job harder.” Id. Ray’s supervisor

also came. Id. at 4; see id. at 5. Plaintiff explained that he had spoken to Ray’s supervisor the day

before. Id. at 4. Ray’s supervisor asked what had happened, and Plaintiff explained that “Ray

says disrespectful things” and explained “the tone she uses speaking to staff.” Id. Owens told

Plaintiff that he “need[ed] to be professional.” Ray then interrupted and said “in a rude tone,” “I

have to use the bathroom, so if anybody wants to work,” and left. Id. Plaintiff “immediately” said

“you see what I mean about her mouth.” Id. Plaintiff again told Owens and Ray’s supervisor

“how unprofessional” she is and that “she has a pattern of doing this.” Id. When Plaintiff later

saw Ray moving a television, he opened a door for her, and Ray left the television “in front of the

door,” and walked away. Id.

Ray “always interferes” whenever Plaintiff redirected residents or gave them expectations.

Compl. at 5. The residents were “feeding into it,” “giving [Plaintiff] an attitude,” and “putting

false allegations on [him].” Id.

On June 4, 2023, Plaintiff “made a mistake” by saying a resident’s “name instead of initials

over the walkie talkie.” Compl. at 5. Plaintiff’s supervisor, Jackson, told him about his mistake,

and Ray laughed at him. Id. Another Yss told Ray that that she had made mistakes too, and that

he “had to correct you” and that “both of you are still new.” Id. Later that night, that Yss and Ray

had a “heated argument” causing Jackson to hold a meeting with all three of them. Id. Ray “starts

raising her voice at [] Jackson about how she wants the description of Yss duties,” and complaining

about two Yss employees. Id. Jackson told Ray that she would “give her a copy of the walkie

talkie policy,” and the meeting ended. Id.

On June 5, 2023, Plaintiff overheard a resident “while on her phone call with her mother

passing messages to” Ray. Compl. at 5. Plaintiff “wrote a 2079 up about the interaction.” Id.

The same day, around 10:30 p.m., Plaintiff asked Ray for help with a task, and Ray ignored him.

Id. at 5. Later, “Ray said . . . we collect inventory at 10:45 pm which we never do unless there’s

a code.” Id. at 5–6.

On June 8, 2023, Plaintiff, Jackson, Ray, Ray’s supervisor, and “YC1 Jaime Murphy”

met. Compl. at 6. Plaintiff said, “I did nothing to you Ms. Ray for you to be undermining me and

being disrespectful in the way you talk to me” and, “I’m not the only coworker you been

disrespectful too and informing the girls that they don’t have to listen to me and making my

workplace hostile.” Id. Ray said “something that a resident said to her,” and Jackson told Ray

that the purpose of the meeting was to address her “behavior toward your coworker.” Id. Ray

“admits she undermines” Plaintiff, gave “a bs reason saying its communication problem” and

Plaintiff disagreed. Id. After Ray apologized, Murphy asked Plaintiff if he accepted her apology,

and Plaintiff responded that he did not. Id. The meeting ended, but while Murphy was walking

out he said to Plaintiff “remember when you called her a pedophile,” and Plaintiff said that he did

not remember saying that. Id. Plaintiff then distributed 2079 forms to Murphy and to Ray’s

supervisor. Id. “Shortly after this,” Ray was moved to a different shift, and Plaintiff did not work

with her “until end of august early September.” Id.

On July 23, 2023, Plaintiff’s “food was stolen.” Compl. at 6. The next day, Plaintiff

learned that Murphy “said he ate” Plaintiff’s food, and he told Plaintiff that he would replace it.

Id. “The 26th came I seen Mr. murphy at pre-shift, only thing he said to me was did I want to do

a shift change.” Id. On July 27th, Plaintiff “inform[ed] director Bolinski of the situation.” Id.

Bolinski “said no one should be touching another person food and that there’s loose boundaries

here.” Id. “Assistant director Houghton” offered to talk to Murphy, and later that day, Houghton

told Plaintiff “Sunday it will be taken care of.” Id.

On Sunday, Murphy called Plaintiff to his office and handed him a pizza. Compl. at 6.

When Plaintiff opened the pizza, he noticed that it had pepperoni, and he returned to Murphy’s

office, told him that he did not eat pork, and “walked out of the office.” Id. Murphy told Plaintiff

“he was trying to make it right.” Id. Later that day, Murphy asked Plaintiff, “are you serious or

are you playing with me about the pepperoni,” and Plaintiff “answered him no I don’t eat pork.”

Id.

The next day, Bolinski called him to his office “because of the pizza situation,” and “here

are some of the quotes ‘if you think I’m paying another $25 dollars for another pizza you’re out

your f**ing mind,’ . . . ‘if you call the sheriff’s I’ll say I didn’t do it and how will you prove it,’ ‘I

could’ve walked you because of your serious allegations even if you didn’t do it,’ ‘if I want to eat

someone food, I’m going to eat it, and I deal with the consequences after,’” and “‘this can’t be a

learning situation?’” Id. at 7. The situation was never “made satisfactory” by Plaintiff’s standards,

and he sent an email to Bolinski. Id.

On September 23, 2023 as Plaintiff was leaving at 7:00 a.m. after a “double,” he stopped

to talk to “YSS Patterson” and Houghton approached, “says hi and speaks to Patterson” but said

nothing to Plaintiff. Compl. at 7. Plaintiff received two calls “from CSU” requesting he work

overtime, and he declined both because they were not his preferred shift. Id. That afternoon,

Houghton called Plaintiff and said, “there’s no hours for me so don’t come in for your shift that

that myself, Murphy, or director Bolinsky will call you when there’s hours available.” Id. Plaintiff

asked if this was related to “a resident putting a False allegation on me which resulted in a safety

plan,” a fact that Plaintiff learned the night before. Id. Houghton said no, and the call ended. Id.

Plaintiff called back “a few minutes later,” and Houghton “told CSU he was busy.” Compl.

at 7. Plaintiff called to speak to his union representative, and “CSU told [Plaintiff] there been

codes all day and that they’re busy.” Id. Plaintiff called the next day to try to reach his direct

supervisor and his union representative, because he “wanted to grieve the situation and needed to

know how,” and was told that “there was codes all day and they both was busy call back.” Id.

Plaintiff called again that night and said that he wanted to speak to Jackson, and he “was told that

‘I don’t know why everyone is being around the bush with you Mcneill we were left a note saying

not to transfer any calls from you,’” and was told that he was “not allowed on the property.” Id.

The next day, Plaintiff sent emails to Bolinsky and the Commissioner of the Office of Children

and Family Services “about the some of the issues and treatment [he] was dealing with” at the

Taberg facility. Id. at 7–8. Plaintiff called the Commissioner’s office and confirmed that his email

was received. Id. at 8.

On September 26, 27, and 28, 2023, “Anita Sapio” called Plaintiff “asking [him] about Yss

Ray and for the 2079 [he] wrote in June and how they’re now investigating the issue.” Compl. at

8. Plaintiff asked Sapio why he “was told there’s no hours for me when they offering overtime on

my shift.” Id. Sapio did not give him a direct answer and said, “I don’t know why they did that

and your still an employee.” Id. Plaintiff asked Sapio why he was “always being removed from

the unit whenever a resident makes any allegation against me by AOD Owens even when there’s

no safety plan and it’s empowering the residents to target me put false allegation on me to get me

off the unit,” and she “had no response.” Id. On September 29, 2023, Sapio called Plaintiff and

told him, “You been put back on schedule.” Id.

On October 2, 2023, a resident told Plaintiff that Bolinsky and Houghton had called her to

their office, “told her don’t lie to us,” and asked her if Plaintiff “hurt her and do she feel

uncomfortable around Yss Mcneill.” Compl. at 8. Later that month, during a conversation with

Sapio at Taberg, Plaintiff told her about his conversation with the resident. Id. Sapio later called

Plaintiff to the director’s officer and “told Bolinski what [Plaintiff] said when it was supposed to

be investigated, also they wanted to bring the youth into the office so they can tell her to her face

she was a liar.” Id. Plaintiff “was against that.” Id.

On October 17, 2023, “AOD Wieliczka” left Plaintiff alone on the unit during an overnight

shift even though he knew that Plaintiff was on a safety plan, and Plaintiff told Jackson later that

day. Compl. at 8. Jackson told him “to write a 2079 on” Wieliczka “because [Plaintiff] can be

fired if caught on camera by [himself].” Id. On November 21st, Wieliczka again left Plaintiff

alone with the residents. Id. Owens was “made aware of situation immediately” and spoke to

Wieliczka. Id. On December 6th, Wieliczka left plaintiff alone on the unit, and another Yss “has

a long talk with [Wieliczka] about why you are leaving Mcneill alone knowing he’s on a safety

plan.” Id.

On February 9, 2024, Murphy told Plaintiff that he was “a dead man walking.” Compl. at

8. Plaintiff asked Murphy what he meant, and Murphy said that he was “referring to the guy from

green mile.”4 Id. That day another Yss told him he was in a group of people “they want to be

fired,” including Jackson. Id. at 9.

On February 15, 2024 Plaintiff contacted the Equal Employment Opportunity Commission

(EEOC) “about the harassment and discrimination at OCFS Taberg.” Compl. at 9.

On March 1, 2024, Plaintiff found out that he was “being put in another department” and

Houghton told him “that if one of [his] allegations comes back substantiated that [he] will be fired.”

Compl. at 9. Plaintiff also talked to Bolinski “about the situation,” and Bolinski said, “I told you

about the girls and the allegation when you started.” Id. Later that day, Plaintiff was “injured by

sitting in a chair which CSU Rizzo says to me earlier both chairs are messed up.” Id. Plaintiff

completed an accident report and left for the hospital. Id.

On March 5, 2024, Plaintiff had a follow up appointment where the “doctor puts [him] on

restrictions and to be reevaluated in 7 days.” Compl. at 9. Plaintiff sent “paperwork to facility.”

Id. On March 8th, Plaintiff asked for worker’s compensation paperwork, and he was told that he

would have the paperwork by March 11, 2024. Id. On March 11th, Plaintiff was “told this is not

workers compensation and they are sending [his] case to the leave unit.” Id. On March 15th,

Plaintiff was “taken out of work 4/29/24.” Id.

On May 17, 2024, Plaintiff called a “justice center investigator” about the “verdict of

allegation” and was told it was “unsubstantiated verbally.” Compl. at 9. On May 24th, Plaintiff

4 The Court takes judicial notice of the fact that The Green Mile is a novel and movie with a central

character who is a Black man on death row, because it “can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201; see

generally, Stephen King, The Green Mile (1996).

had his “interview with the EEOC.” Id. On June 3rd, Plaintiff received a “letter in mail from

justice center saying [his] allegation 2/27/24 came back substantiated.” Id. On June 6, 2024,

Plaintiff called the justice center investigator and was told that “her boss decided to believe the

witnesses.” Id. On June 12th, Plaintiff received a call from his “workers compensation lawyer”

regarding a determination about his benefits. Id. at 9–10. On June 15th, Plaintiff received a letter

from Houghton stating that his “services [were] no longer needed at OCFS (Taberg facility)

[Plaintiff] was fired for the second time.” Id. at 10.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure,

“a complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’”

Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Although a complaint need not contain

detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation

of the elements of the cause of action, and the factual allegations ‘must be enough to raise a right

to relief above the speculative level.’” Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017

WL 4250513, at *2 (S.D.N.Y. Sep. 22, 2017) (quoting Twombly, 550 U.S. at 555). A court must

accept as true all well-pleaded factual allegations in the complaint and draw all reasonable

inferences in the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014)

(citing ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the

tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable

to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Where “a plaintiff is proceeding pro se, the complaint must be considered under a more

lenient standard than that accorded formal pleadings drafted by lawyers.” Harrison v. New York,

95 F. Supp. 3d 293, 313 (E.D.N.Y. 2015) (quotation and citation omitted). The complaint must

also be construed liberally “to raise the strongest arguments that it suggests.” Costabile v. N.Y.C.

Health & Hosps. Corp., 951 F.3d 77, 80 (2d Cir. 2020). “Nonetheless, a pro se complaint must

state a plausible claim for relief.” Darby v. Greenman, 14 F.4th 124, 128 (2d Cir. 2021) (quoting

Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013)).

III. DISCUSSION

A. Title VII Discrimination

Defendant argues that Plaintiff’s discrimination claim for “unfair treatment” based on any

protected characteristics should be dismissed because Plaintiff has not alleged nonconclusory facts

that would link any adverse employment actions to his membership in a protected class.

Defendant’s Memorandum of Law (Def. Mem.) at 9–10, Dkt. No. 10-2. Plaintiff responds by

stating the legal standard for a motion to dismiss and asserting factual allegations that are not in

the Complaint. Plaintiff’s Memorandum of Law (Pl. Mem.) at 1–6, Dkt. No. 13.

To “defeat a motion to dismiss . . . in a Title VII discrimination case, a plaintiff must

plausibly allege that (1) the employer took adverse action against him, and (2) his race, color,

religion, sex, or national origin was a motivating factor in the employment decision.” Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). “[A]t the pleadings stage . . . a

plaintiff has a “‘minimal burden’ of alleging facts ‘suggesting an inference of discriminatory

motivation.’” Id. (quoting Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015)). “[A]

plaintiff must allege that the employer took adverse action against her at least in part for a

discriminatory reason, and she may do so by alleging facts that directly show discrimination or

facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.”

Id. (citing Littlejohn, 795 F.3d at 310).

Here, assuming that Plaintiff has sufficiently alleged an adverse employment action, that

is, his termination, he has not pled facts that directly show discrimination or give rise to an

inference of discrimination. A plaintiff may raise an inference of discrimination “from

circumstances including, but not limited to, the employer’s criticism of the plaintiff’s performance

in ethnically degrading terms; or its invidious comments about others in the employee’s protected

group; or the more favorable treatment of employees not in the protected group; or the sequence

of events leading to the plaintiff’s discharge.” Littlejohn, 795 F.3d at 312 (quotation and citation

omitted). Plaintiff “is permitted to create a mosaic with the bits and pieces of available evidence

that, taken together, support a plausible inference of intentional discrimination.” Buon v. Spindler,

65 F.4th 64, 84 (2d Cir. 2023) (cleaned up) (quotation omitted); see also Littlejohn, 795 F.3d at

311.

Regarding a potential discriminatory statement theory, the Complaint alleges that Murphy

said that Plaintiff was “a dead man walking,” and Murphy explained that he was “referring to the

guy from green mile.” Compl. at 8. The Complaint does not, however, allege that Murphy was a

supervisor, that he had any authority over Plaintiff, or that he was involved in any way in the

decision to terminate Plaintiff. As a result, even assuming that viewing the allegations in the

Complaint as true and drawing all reasonable inferences from those facts, the Complaint alleges

that Murphy made a discriminatory statement, it does not sufficiently allege how that statement is

evidence of a discriminatory motive by Defendant’s employer. In addition, Murphy’s comment is

the only such allegation, and it is not part of other “bits and pieces of available evidence.” Buon,

65 F.4th at 84. In sum, Murphy’s comment on its own, without any allegation about his role at

Plaintiff’s employer or allegations about similar comments by others employed by Defendant,

cannot support a plausible inference of intentional discrimination.

“Evidence showing disparate treatment of ‘similarly situated employees’ may support a

finding that an ‘adverse job action was a pretext for . . . discrimination.’” Nambiar v. Cent.

Orthopedic Grp., LLP, 158 F.4th 349, 365 (2d Cir. 2025) (alteration in original) (quoting Graham

v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000)). However, the “comparator employee or

employees must be similarly situated to [the plaintiff] ‘in all material respects.’” Collins v. Fed.

Express Corp., No. 24-1478-cv, 2025 WL 1764809, at *3 (2d Cir. June 26, 2025) (quoting

Graham, 230 F.3d at 39).

Regarding a potential comparator theory, Plaintiff’s allegations are not very clear. For

example, Plaintiff identifies many individuals he worked with, but other than acronyms that appear

to refer to positions, Plaintiff does not explain what positions these individuals held or whether

they were members of the same protected class as Plaintiff. The allegation that is closest to

alleging facts that would permit an inference of discrimination based on disparate treatment is the

description of Ray’s behavior and the lack of consequences for her behavior. The Complaint does

not, however, address whether Ray or any of the other named individuals have the same protected

characteristics as Plaintiff. Accordingly, the Court cannot infer that Plaintiff was subject to

disparate treatment based on any protected characteristics from the Complaint’s allegations about

how other employees were treated.

To the extent that Plaintiff articulated additional factual allegations in his opposition to the

motion to dismiss, they will not be considered. See Smith v. City of New York, 12-cv-3250, 2013

WL 1903856, at *4 (S.D.N.Y. May 8, 2013) (citing Jean-Laurent v. Wilkerson, 461 Fed. App’x

18, 21–22 (2d Cir. 2012) (explaining that where pro se plaintiff offered factual allegations in his

opposition to a motion to dismiss “the District Court was required only to address the sufficiency

of the allegations actually made in the First Amended Complaint”)). “Although courts are

permitted to consider factual allegations made in a pro se plaintiff’s memorandum opposing a

motion to dismiss such procedural latitude is not warranted in this case.” Id. (citing Braxton v.

Nichols, No. 08-cv-8568, 2010 WL 1010001, at *1 (S.D.N.Y. March 18, 2010)). The motion to

dismiss is therefore granted on this claim.

B. Americans with Disabilities Act Discrimination and Failure to Accommodate

The Complaint does not specifically assert an Americans with Disabilities Act (ADA), 42

U.S.C. § 12131 et seq., claim, but, construing the Complaint liberally as required, Plaintiff’s

allegations that Defendant did not “provide reasonable accommodations for [his] disability” and

that he was subject to “unfair treatment based on [his] . . . disability,” suggest an ADA claim.

Compl. at 11; see McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 158 (2d Cir. 2017)

(concluding that, “where [the plaintiff’s] factual allegations supported claims under the well-

known anti-discrimination provisions of the NYSHRL and NYCHRL, our existing precedent

required the district court to construe [her] complaint as asserting claims under those laws,

regardless of her failure to check the appropriate blank on a form complaint.”). Defendant argues

that Plaintiff failed to allege a disability, or why any alleged impairment would qualify as a

disability. Def. Mem. at 15. Plaintiff responds by stating the legal standard for a motion to dismiss

and asserting factual allegations that are not in the Complaint. Pl. Mem. at 1–6.

“In general, plaintiffs who seek to state a claim for disability discrimination under the ADA

must establish ‘that (1) they are ‘qualified individuals’ with a disability; (2) that the defendants are

subject to the ADA; and (3) that plaintiffs were denied the opportunity to participate in or benefit

from defendants’ services, programs, or activities, or were otherwise discriminated against by

defendants, by reason of plaintiffs’ disabilities.’” Durr v. Slator, 558 F. Supp. 3d 1, 27 (N.D.N.Y.

2021) (quoting Henrietta D. v. Bloomberg, 331 F.3d 261, 272–73 (2d Cir. 2003) (quoting 42

U.S.C. § 12132)).

To sustain a claim for a failure to accommodate under the ADA “a [plaintiff] must show

that: ‘(1) [he] is a person with a disability under the meaning of the ADA; (2) an employer covered

by the statute had notice of his disability; (3) with reasonable accommodation, [the plaintiff] could

perform the essential functions of the job at issue; and (4) the [defendant] has refused to make such

accommodations.’” Noll v. Int’l Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015) (quoting

McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009)).

“To establish a disability, a plaintiff must: (1) ‘show that she suffers from a physical or

mental impairment’; (2) ‘identify the activity claimed to be impaired and establish that it

constitutes a major life activity’; and (3) ‘show that her impairment substantially limits the major

life activity previously identified.’” Norman v. NYU Langone Health Sys., 492 F. Supp. 3d 154,

163 (S.D.N.Y. 2020) (quoting Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 147 (2d

Cir. 2002)). A physical impairment is “[a]ny physiological disorder or condition, cosmetic

disfigurement, or anatomical loss affecting one or more body systems.” 29 C.F.R. § 1630.2(h)(1).

Major life activities are non-exclusively defined to include “caring for oneself, performing manual

tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,

learning, reading, concentrating, thinking, communicating, and working,” in addition to “the

operation of a major bodily function.” 42 U.S.C. § 12102(2).

To qualify as a disability, an impairment must “substantially limit[] the ability of an

individual to perform a major life activity as compared to most people in the general population;”

but “need not prevent, or significantly or severely restrict, the individual from performing a major

life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). “The

term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and “is not

meant to be a demanding standard.” Id. § 1630.2(j)(1)(i).

The Complaint does not state a claim for ADA discrimination or failure to accommodate

because it does not allege an impairment or how any impairment substantially affected any of

Plaintiff’s major life activities, and the Court will not consider the additional factual allegations

Plaintiff included in his opposition for the reasons stated above. The motion to dismiss is therefore

granted on this claim.

C. Title VII Hostile Work Environment

The Complaint asserts a claim for a Title VII hostile work environment5 based on a

“continued pattern of unwelcomed behavior from coworkers (Caucasian) in workplace” including

“Threats, unwelcomed jokes, conspiring to get me terminated.” Compl. at 11. Defendant argues

that this claim should be dismissed because the Complaint does not allege that any of the harassing

conduct was based on any protected characteristics. Def. Mem. at 12. Plaintiff responds by stating

the legal standard for a motion to dismiss and asserting factual allegations that are not in the

Complaint. Pl. Mem. at 1–6.

“To establish a hostile work environment under Title VII . . . a plaintiff must show that the

‘workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.’” Littlejohn, 795 F.3d at 320–21 (quoting Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993)). “This standard has both objective and subjective components: the conduct

complained of must be severe or pervasive enough that a reasonable person would find it hostile

5 The Complaint states a cause of action for “Harassment,” Compl. at 11, but the briefs refer to a

hostile work environment claim.

or abusive, and the victim must subjectively perceive the work environment to be abusive.” Id.

(quoting Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (citing Harris, 510 U.S. at 21–

22)). In addition, “[t]he incidents complained of must be more than episodic; they must be

sufficiently continuous and concerted in order to be deemed pervasive.” Id. (quoting Raspardo,

770 F.3d at 114). Finally, when deciding “whether a plaintiff suffered a hostile work

environment,” courts “consider the totality of the circumstances, including ‘the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.’” Id. (quoting Harris, 510 U.S. at 23). A plaintiff must “demonstrate that she was

subjected to the hostility because of her membership in a protected class.” Kiraka v. M&T Bank,

No. 6:18-cv-1264 (GLS/TWD), 2020 WL 1285632, at *4 (N.D.N.Y. Mar. 18, 2020) (quoting

Smith v. New York and Presbyterian Hosp., No. 18-cv-776, 2020 WL 777786, at *25 (S.D.N.Y.

Feb. 18, 2020) and citing Hussey v. N.Y. State Dep’t of L./Off. of Atty. Gen., 933 F. Supp. 2d 399,

412 (E.D.N.Y. 2013) (dismissing the plaintiff’s hostile work environment claim because she

“failed to allege that any of the defendants’ specific actions were motivated by discriminatory

animus”)).

The Complaint alleges several incidents that occurred at Plaintiff’s workplace, but, like

Plaintiff’s Title VII discrimination claim, the Complaint does not allege facts that would permit an

inference that any of these actions were motivated by discriminatory animus because of any

protected characteristics. In addition, the Court will not consider the additional factual allegations

Plaintiff included in his opposition for the reasons stated above. The motion to dismiss is therefore

granted on this claim.

D. Title VII Retaliation

The Complaint asserts a claim for a Title VII retaliation: “Punished for complaining about

Discrimination and contacting EEOC and OER, the different treatment I received from my non

black coworkers.” Compl. at 3. Defendant argues that this claim should be dismissed because the

substance of Plaintiff’s complaints is not clear, and the Complaint therefore does not allege facts

that would establish that he engaged in protected conduct. Def. Mem. at 16–17. Plaintiff responds

by stating the legal standard for a motion to dismiss and asserting factual allegations that are not

in the Complaint. Pl. Mem. at 1–6.

To allege a Title VII retaliation claim, “the plaintiff must plausibly allege that: (1)

defendants discriminated—or took an adverse employment action—against him, (2) ‘because’ he

has opposed any unlawful employment practice,” Vega, 801 F.3d at 90 (quoting 42 U.S.C.

§ 2000e–3(a)), or “otherwise ma[de] a charge, testif[ied], assist[ed], or participat[ed] in any

manner ‘in an investigation, proceeding, or hearing,’” Banks v. Gen. Motors, LLC, 81 F.4th 242,

275 (2d Cir. 2023) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)).

“An employee’s complaint may qualify as protected activity” when “the employee has a

good faith, reasonable belief that the underlying challenged actions of the employer violated the

law,” that is Title VII. Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d

10, 14 (2d Cir. 2013) (quotation and citation omitted). A plaintiff’s belief is not reasonable,

however, “simply because he . . . complains of something that appears to be discrimination in some

form.” Id. at 15. The plaintiff must believe that Title VII made the conduct illegal and that belief

must be “reasonable and characterized by objective good faith.” Id. at 16 (quotation and citation

omitted).

Here, the Complaint states that Plaintiff complained to the EEOC “about the harassment

and discrimination at OCFS Taberg,” but does not identify the substance of that complaint. Compl.

at 9. Similarly, the Complaint states that Plaintiff complained to “Anita Sapio,” about why there

were no hours for him and why he was “always being removed from the unit whenever a resident

makes any allegation.” Compl. at 8. But the Complaint does not allege that Defendant took either

of these actions because of any protected characteristics. Similarly, even assuming that a “2079”

is some kind of grievance and that filing a 2079 could be a protected activity, Plaintiff does not

allege that the 2079 included the description of a practice that Plaintiff had an objective good faith

basis to believe was prohibited by Title VII. Finally, as explained above, the Complaint does not

allege that Plaintiff was the subject of discriminatory actions because of any protected

characteristics. As a result, it is not reasonable to infer that any of Plaintiff’s complaints described

conduct that Plaintiff would have an objective good faith basis to believe was prohibited by Title

VII. In addition, the Court will not consider the additional factual allegations Plaintiff included in

his opposition for the reasons stated above. The motion to dismiss is therefore granted on this

claim.

IV. LEAVE TO AMEND

Although Plaintiff has not requested leave to amend, ordinarily, a court “‘should not

dismiss’ a pro se complaint ‘without granting leave to amend at least once when a liberal reading

of the complaint gives any indication that a valid claim might be stated.’” Jeanty v. Sciortino, 669

F. Supp. 3d 96, 118 (N.D.N.Y. 2023) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,

795–96 (2d Cir. 1999)); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to

amend] when justice so requires.”). Here, Plaintiff may file an amended complaint asserting all of

his dismissed claims.

In any amended complaint, Plaintiff must clearly set forth the facts that give rise to his

claims, including identification of each individual who committed each alleged wrongful act, and

explanation of their role and responsibilities. Plaintiff should also reattach the EEOC letter. In

addition, Plaintiff should include all factual allegations in any amended complaint to ensure that

the Court will consider them if Defendant moves to dismiss any amended complaint. Finally, any

amended complaint will replace the existing complaint; it must be a wholly integrated and

complete pleading that does not rely upon or incorporate by reference any pleading or document

previously filed with the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.

1994) (“It is well established that an amended complaint ordinarily supersedes the original[] and

renders it of no legal effect.”) (quoting Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.

1977). Plaintiff should file any amended complaint within 30 days of this order.

V. CONCLUSION

For these reasons, it is hereby

ORDERED that the Defendant’s motion to dismiss, Dkt. No. 10, is GRANTED; it is

further

ORDERED that Plaintiff is granted leave to amend to the extent authorized in this

Memorandum-Decision and Order, it is further

ORDERED that any amended complaint must be filed within 30 days of the date of this

Memorandum-Decision and Order, it is further

ORDERED that, if Plaintiff fails to file an amended complaint within the thirty-day

deadline, the Clerk of the Court is respectfully directed to close this case without further order

from the Court; and it is further

ORDERED that the Clerk serve a copy of this Memorandum-Decision and Order on the

parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: March 24, 2026

Elizabeth C. Coombe

U.S. District Judge

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